Court No. SO 2015 00007
D. Dolce, for appellant.
S. Kasper, Huron County Prosecuting Attorney, and Dina
Shenker, Assistant Prosecuting Attorney, for appellee.
DECISION AND JUDGMENT
1} Appellant, B.O., appeals the judgment of the
Huron County Court of Common Pleas, Juvenile Division,
adjudicating him delinquent, placing him in the legal custody
of the Department of Youth Services for a period of six
months, and ordering him to serve 90 days in detention. We
Facts and Procedural Background
2} On August 24, 2015, the state filed a delinquency
complaint in the trial court, charging appellant with one
count of gross sexual imposition in violation of R.C.
2907.05(A)(4), a felony of the third degree if committed by
an adult. The complaint alleged that appellant, a 12 year old
child at the time, touched his half sister's vaginal area
with his tongue and had her touch his penis with her hand.
The victim was seven years old at the time of the offense.
3} Following preliminary discovery, appellant filed
a motion to dismiss, in which he argued that the charges
against him should be dismissed because the charges violated
his constitutional rights. Specifically, appellant cited to a
decision of the Supreme Court of Ohio that held that R.C.
2907.02(A)(1)(b), the statutory rape statute, was
unconstitutional as applied to a child under the age of 13
who engaged in sexual conduct with another child under the
age of 13 because both children would technically be guilty
under the statute since statutory rape is a strict liability
crime. In re. D.B., 129 Ohio St.3d 104,
2011-Ohio-2671, 950 N.E.2d 528, syllabus. Charging only D.B.
with statutory rape was found to be a violation of D.B.'s
right to equal protection. Id. at ¶ 30.
4} Analogizing the elements of the statutory rape
statute with those under R.C. 2907.05(A)(4), appellant
concluded that it was unconstitutional for the state to
charge him with gross sexual imposition for nonforcible
sexual contact with someone under the age of 13 where he was
also under the age of 13.
5} Upon consideration of appellant's argument,
the trial court issued its decision on November 5, 2015. In
its decision, the court noted that gross sexual imposition
and statutory rape have different elements. In particular,
the court concluded that gross sexual imposition, unlike
statutory rape, is not a strict liability offense because it
requires a showing that the perpetrator touched an erogenous
zone of another for the purpose of sexually arousing or
gratifying either person. Under the court's reasoning,
this additional mens rea element helped differentiate the
victim from the offender in these cases and resolved the
constitutional concern raised in In re D.B.
concerning statutory rape. Ultimately, the court denied
appellant's motion to dismiss, and the matter proceeded
6} On April 19, 2016, an adjudicatory hearing was
held, and appellant was found to be delinquent. At his
subsequent dispositional hearing, appellant was ordered to
serve 90 days in detention, and was placed in the legal
custody of the Department of Youth Services (DYS) for a
period of six months. The trial court suspended 30 days of
the detention sentence, as well as the six month DYS
sentence, upon certain conditions. It is from this order that
appellant has timely appealed.
Assignment of Error
7} On appeal, appellant assigns the following ...